WPCNR highlights key arguments from Judge Francis A. Nicolai’s sweeping decision calling for a continuation of the White Plains Council election involving Larry Delgado and Glen Hockley to take place in District 18 among all 6 council candidates. The Administrative Judge of the New York Supreme Court ruled Thursday evening.
Judge Nicolai reasoned his right to jurisdiction, one of attorney Adam Bradley’s contentions against Mr. Delgado’s petition, was based in the condition that neither candidate had taken office:
“Once a successful candidate has assumed office, an aggrieved candidate’s exclusive remedy is in the nature of a quo warranto action by the Attorney General…
However, when an office is not yet occupied, a quo warranto action is unavailable, and a plenary action for declaratory judgment is appropriate…
Further, the court has the power to convert an election proceeding to an action for declaratory judgment…Thus, since the subject public office is not yet occupied, this proceeding is hereby converted into an action for declaratory judgment with the petition deemed the complaint…In the context of this declaratory judgment action, Petitioner’s claims may be duly adjudicated.
On the matter of Delgado not proving need for relief
Respondent Hockley further argues that Petitioner has not made a factual showing entitling him to relief. This Court disagrees. It is undisputed that the voting machine in Election District 18 malfunctioned after recording just 39 votes for Petitioner Delgado, thereby preventing the recording of any additional votes for Petitioner.The facts of this case clearly establish that had the voting machine not malfunctioned, Petitioner would have received votes in excess of 39 in Election District 18, and that the machine malfunction affected the election results. Further, Respondent Hockley has produced no probative evidence to the contrary.
Accordingly, in light of the faulty vote tally in Election District 18, and the resulting faulty city-wide wlection results, the election of Respondent Hockley can not be certified.
Judge Nicolai says “Not so Fast, Mr. Delgado.
Mr. Delgado’s attorney, Jeffrey Binder argued that based on Mr. Delgado’s showing citywide that Judge Nicolai declare Mr. Delgado the winner during the court phase of the petition. The Judge felt this outcome could not be assumed:
While Petitioner(Mr. Delgado) contends that the malfunction of the voting machine may be somehow corrected by an “appropriate mathematic adjustment” made to the election returns, and an adjustment of the canvass, this Court disagrees. This Court, cannot, as Petitioner urges, determine either as a matter of fact or law, the accurate tally of votes received by Petitioner Delgado on November 6, 2001 and declare the Petitioner is the winner. In as much as this Court cannot permit the issuance of a certificate of election to a candidate who may not have actually won due to a mechanical malfunction (Hockley), this Court also cannot presume that Petitioner is the winner of the election based upon a subjective mathematical or statistical analysis.
Judge Rules Out Citywide Election
Candidate Hockley’s attorney had argued for a remedy which called for a citywide election with all registered voters allowed to participate. Judge Nicolai declared this argument to be “without merit:”
While it is impossible to determine exactly how many votes Petitioner would have received had there not been a malfunction in the voting machine, the remedy fashioned must be reasonably calculated to demonstrate the intent of the voters of Election District 18 on November 6, 2001 to vote for a member of the Common Council. A new city-wide election, with all registered voters eligible to participate, whether they voted on November 6, 2001 or not, would not be determinative of the intent of the voters who actually voted on November 6, 2001 in Election District 18, but may not have had their votes recorded.
Further, a city-wide election is unnecessary and unduly burdensome for Responsent Board of Elections since there were no reported irregularities in the 45 other election districts.
Text in italics> excerpted from the Delgado decision issued Thursday evening by Judge Francis A. Nicolai, New York Supreme Court.